GUIDANCE
Pre-employment
health questions
Guidance for employers on
Section 60 of the Equality Act 2010
Equality and Human Rights Commission
www.equalityhumanrights.com
Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
Contents
Introduction .................................................................................................... 3
The purpose of Section 60 ............................................................................. 3
What and who does Section 60 apply to? .................................................... 4
What enquiries does Section 60 prohibit? ................................................... 4
Exceptional circumstances when health questions are permitted............ 4
What if prohibited questions are asked? ..................................................... 5
Examples of Section 60 breaches and compliance ..................................... 6
Application forms .............................................................................................. 6
Positive action .................................................................................................. 7
Occupational requirement ................................................................................ 7
Monitoring......................................................................................................... 7
Interviews ......................................................................................................... 8
The position once work has been offered ......................................................... 9
Checklist for employers ............................................................................... 10
Further sources of information and advice ................................................ 12
Contact us ..................................................................................................... 15
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
Introduction
Section 60 of the Equality Act 2010 makes it generally unlawful to ask questions
about disability and health before you make a job offer. The Commission can take
legal action and job applicants may have claims of discrimination where these legal
requirements have been breached.
The legal interpretation of Section 60 can be found in our publication: Employment
Statutory Code of Practice, at pages 126 to 131. Please see our website:
www.equalityhumanrights.com. We also refer to it in our Equality Act 2010 guidance
for employers: What equality law means for you as an employer: When you recruit
someone to work for you (also available on the Commission's website).
Section 60 complements other legal requirements in the Equality Act 2010 designed
to remove barriers that disabled people experience in securing jobs.
Section 60 does not affect the employer's legal responsibility to make reasonable
adjustments for disabled job applicants where this duty applies. This duty requires
prospective employers to take reasonable steps to overcome the disadvantages that
disabled people may experience during the recruitment process. A failure to make
reasonable adjustments for a disabled job applicant during the recruitment process
constitutes unlawful disability discrimination that cannot be justified. The
Employment Code of Practice and Equality Act 2010 guidance both provide further
information about this duty.
Section 60 does not prevent employers selecting the best candidate for the job;
instead it ensures recruitment decisions are objectively made, based on each
candidate’s true abilities.
The purpose of Section 60
The purpose of Section 60 is to prevent disability or health information being used to
sift out job applicants without first giving them the opportunity to show they have the
skills to do the job.
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
What and who does Section 60 apply to?
Section 60 applies to:

any job recruitment process in England, Scotland or Wales involving internal or
external applicants, and also to selecting a pool of candidates who may be
offered work in the future

employers, employment agencies and authorised agents

all applicants for work and all individuals and organisations offering work

contract workers, partnership positions, pupillages and tenancies (including
Scottish equivalents) and appointments to personal or public office.
What enquiries does Section 60 prohibit?

Enquiries by or on behalf of an employer about a job applicant's disability and
health during the recruitment process up to the point when a job offer is made.

Written and verbal questions put to job applicants and to any third party– for
example, a current or ex-employer.
The job offer can be conditional or unconditional. An employer can make an offer
conditional on medical checks and then ask health-related questions without being
in breach of Section 60.
Exceptional circumstances when health questions are permitted
Section 60 allows questions about health and disability to be asked before job
applicants are offered the job only when the law says they are necessary and fall
within these narrow exceptions:
1. To find out if a job applicant can take part in any assessment to test their ability
to do the job or to find out if reasonable adjustments are needed to enable a
disabled job applicant to take part in any assessment (see frequently asked
question 9 below). This information should be collected separately from
other information given in the application for the job.
Continued…
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
2. To find out whether a job applicant will be able to carry out an intrinsic part of
the job. If this part of a job can be changed or assigned to another person then
this may count as a reasonable adjustment for a disabled job applicant – see
below for further explanation of this duty and see also the Commission's
Employment Statutory Code of Practice (see questions 3, 8, 10 and 11 below).
3. To find out whether a job applicant has a particular disability where having that
disability is an occupational requirement of the job (see question 5 below).
4. To monitor the diversity of people applying for the job. This information should
be collected separately from other information given in the application for the job
(see questions 6 and 7 below).
5. To take positive action in relation to disabled people – for example, to decide if
job applicants qualify for measures the employer takes to improve disabled
people's employment rates (see question 4 below).
6. Where another legal requirement means an employer has to ask health- or
disability-related questions. For example, Merchant Shipping Regulations
prohibit the employment of seafarers unless they have a valid medical fitness
certificate.
What if prohibited questions are asked?
Section 60 has been in force since October 2010 and employers can expect to be
increasingly asked why disability- or health-related questions are being asked during
a recruitment process. If the purpose of those questions is not clearly explained with
reference to the statutory exceptions, then dissatisfied job applicants who have been
disadvantaged by those questions may be able to bring legal proceedings.
It is not possible for a job applicant to bring a claim against an employer just
because they have been asked questions about health or disability which are not
allowed by Section 60. However, if an employer does ask questions that are not
allowed and does not then offer the applicant a job, the employer could be liable for
unlawful disability discrimination and, if so, will have to pay the financial damages
that result from this.
The employer would only be liable if they did not select the applicant for the job
because he/she is disabled or because the employer thought that he/she is disabled.
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
There may also be a claim if an applicant is offered a job subject to health checks
and it is then withdrawn simply because he/she is disabled or because the employer
thinks that he/she is disabled.
The Commission is responsible for regulating employer's compliance with Section
60 and it can take legal enforcement action against employers for non-compliance
when it is proportionate to do so.
Examples of Section 60 breaches and compliance
In the following section there are examples to illustrate how Section 60 is intended to
work in practice. It is done in the form of answers to frequently asked questions
about how these duties will affect the lawfulness of the particular recruitment process
or practice.
Application forms
1. Question: An employer's standard job application form for all jobs contains a
section requiring job applicants to reveal information about any health issues
and the number of days they have had off because of ill health in the last two
years. Is this lawful?
Answer: This section of the form is in breach of Section 60 because the
questions clearly relate to health (and possibly disability) and this general
health information is not necessary under one of the defined exceptions.
2. Question: A recruitment agency acting for a large employer has been asked
to select a pool of candidates who can do a range of jobs for them at short
notice. The agency draws up a shortlist partly based on information that it
requests from referees some of which relates to health and disability
(e.g. sickness absence figures). Is this lawful?
Answer: There is a breach of Section 60. This is because the agency, acting
on behalf of the employer, has requested information about health and
disability to determine who should be shortlisted. It would be good practice for
employers to instruct agencies not to ask questions about health or disability
when carrying out an exercise of this nature unless they are allowed to do so
under one of the exceptions.
Continued…
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
3. Question: When recruiting scaffolders, a construction company asks
applicants whether they have a disability or health condition that affects their
ability to climb ladders. Is this lawful?
Answer: As the ability to climb ladders and scaffolding is an intrinsic function
of the job, the construction company is not in breach of Section 60.
Positive action
1. Question: A telesales company wishes to achieve greater diversity in its
workforce to reflect the consumers it provides services to. Various groups are
under-represented, including disabled people. In its recruitment materials it
asks disabled candidates to identify themselves so that they can benefit from
the company's guaranteed interview scheme for disabled candidates. Is this
lawful?
Answer: Asking health- or disability-related questions for this legitimate
purpose – promoting lawful positive action – is not in breach of Section 60.
Occupational requirement
1. Question: A charity wishes to recruit a Deafblind project worker who has
personal experience of Deafblindness. This is an occupational requirement of
the job and the job advert states that this is the case. In the application form
the employer asks for evidence that applicants meet this requirement. Is this
lawful?
Answer: It is lawful because being Deafblind is an occupational requirement
of the job.
Monitoring
1. Question: The monitoring forms containing health- and disability-related
information that a large public sector employer uses have not been separated
from the rest of the job application forms. Consequently, the panel making
shortlisting decisions uses the information it has been given about health and
disability to sift out candidates that in its view are not up to the job. Is this
lawful?
Answer: It is a breach of Section 60 to ask for information about health and
disability in order to shortlist candidates during a recruitment process. If the
information is legitimately sought for monitoring purposes, it should be kept
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
separate from the application form and should not be seen by the interview
panel.
2. Question: A small employer is unable to separate monitoring information
about disability in job application forms because she personally handles the
whole recruitment process. However, she takes care to disregard this
information in respect of shortlisting and selection. Is this lawful?
Answer: Provided that she disregards information about disabilities (for
anything other than monitoring purposes) and considers each job applicant's
ability to do the job without reference to disability, then this is compliant with
Section 60.
Interviews
1. Question: At an interview for a research post a disabled applicant volunteers
the information that he will not be able to use standard computer software to
prepare reports because of the nature of his impairment. The interviewers are
not sure whether they can ask additional questions about this.
Answer: If the preparation of reports is an intrinsic part of the job then
additional questions can be asked to establish whether there are reasonable
adjustments that can be made – for example, the provision of a voice
activated computer – and to establish whether he is able to prepare reports
with those adjustments in place. It would be good practice for the interviewers
to explain the reasons for the additional questions during the interview.
2 . Question: During the course of an interview, a job applicant discloses that he
has a visual impairment which is not otherwise obvious. Unprompted, he tells
the interview panel that he does not consider that the impairment affects his
ability to do the job and asks if there are any questions they would like to ask
him about this. A panel member does ask him if he will need any adjustments
to carry out a test if he makes it to the next stage of the recruitment process.
The panel does not use any disability-related information to decide if his
application can proceed further. Is this lawful?
Answer: The panel has before it disability-related information which it ignores
in its decision-making process. A panel member asks a legitimate question
about adjustments to the recruitment process which falls within an exception.
This means that the employer is not in breach of Section 60.
Continued…
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
3. Question: An internal applicant is interviewed for a job. The interview panel
includes someone who is aware that this applicant was recently absent from
work due to a mental health condition for a number of months.
During the interview this panel member asks the applicant whether there are
any health issues which would affect his ability to cope with the mental
pressures of the job. Is this lawful?
Answer: This will be in breach of Section 60 if coping with mental pressure is
not an intrinsic function of this particular job.
4. Question: An employer is interviewing an applicant for a post where coping
with mental pressure is an intrinsic function of the job. The employer asks the
applicant to give examples of how he has handled a difficult situation or
worked to a tight deadline.
Answer: The employer has not breached Section 60 by asking these
questions as they are about the applicant’s ability to do the job and are not
related to the applicant’s health or disability.
The position once work has been offered
1. Question: An employer refers successful candidates to its own occupational
health practitioner who asks them to complete a health questionnaire. This
asks questions about mental health which are not necessary to assess the
candidate’s ability to do the job. One disabled applicant gives information
about a long-standing mental health condition which is well controlled by
medication. The employer withdraws the job offer relying on this information.
Answer: Questions about health and disability can be asked after a job offer
has been made but the successful candidate would be able to make a claim
of disability discrimination if the offer has been withdrawn because of his
disability. However, referring successful candidates to an occupational health
practitioner can be a positive step as it should provide an opportunity to
explore reasonable adjustments with candidates who have a disability.
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
Checklist for employers
Set out below is a non-exhaustive checklist of actions for employers that will help to
promote compliance with Section 60. It is strongly recommended that employers use
this in order to avoid breaching Section 60.
Review recruitment policies, practices and procedures to analyse and ensure
compliance with Section 60.

Remove general questions to job applicants and third parties that relate to health
and disability (e.g. questions concerning sickness absence) in recruitment
materials.

If seeking references in advance of an offer being made, do not ask for
information about sickness absence.

Train employees and instruct agents making recruitment decisions of their
practical responsibilities under Section 60, especially on what they can and
cannot do.

Structure the recruitment exercise, so far as is possible, to focus objectively on
relevant and necessary skills, knowledge, abilities and experience, avoiding
reference to health and disability questions that do not fall within legitimate
Section 60 exceptions.

Clearly explain why information about disability is being sought for monitoring
purposes, spelling out what this information will and will not be used for.

Where possible, separate disability monitoring data from other information
provided by job applicants and take all necessary steps to ensure that this
information is not used by those making recruitment decisions.

Ask questions about reasonable adjustments relating to the recruitment process
at the appropriate stage, f or example, in the job advert in relation to adjustments
to completion of forms or CVs; or after shortlisting candidates in relation to
adjustments to tests, interviews or assessments.

Clearly explain when exceptions to Section 60 are being used and why you
believe it is necessary to ask disability- or health-related questions.

Take care to refer candidates to occupational health practitioners only after a job
offer has been made.

Provide instructions to occupational health practitioners that discourage adverse
assumptions being made about disability, and enable proper consideration of
reasonable adjustments, where required, resulting in appropriate
recommendations.
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010

Incorporate Section 60 compliance measures within the policies, practices and
procedures in place to prevent unlawful discrimination from arising in the
recruitment process as a whole.

Monitor and review the effectiveness of such compliance measures, and take
additional action to achieve compliance where needed.
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
Further sources of information and advice
Equality and Human Rights Commission
The Equality and Human Rights Commission is the independent advocate for
equality and human rights in Britain. It aims to reduce inequality, eliminate
discrimination, strengthen good relations between people, and promote and protect
human rights. If you need expert information, advice and support on discrimination
and human rights issues and the applicable law, especially if you need more help
than advice agencies and other local organisations can provide, please contact the
Equality Advisory and Support Service (EASS), below. EASS was commissioned by
Government in 2012 to replace the EHRC Helpline, which is now closed. EASS is
completely independent of the Commission.
Equality Advisory Support Service (EASS)
The Helpline advises and assists individuals on issues relating to equality and
human rights, across England, Scotland and Wales. It replaces the Equality and
Human Rights Commission’s helpline and is aimed at individuals who need more
expert advice and support on discrimination than advice agencies and other local
organisations can provide. They can also accept referrals from organisations which,
due to capacity or funding issues, are unable to provide face to face advice to local
users of their services.

Telephone: 0808 800 0082 (Mon to Fri 9am to 8pm and Sat 10am to 2pm)

Text phone: 0808 800 0084(Mon to Fri 9am to 8pm and Sat 10am to 2pm)
Acas – The Independent Advisory, Conciliation and Arbitration Service
Acas aims to improve organisations and working life through better employment
relations. It provides impartial advice, training, information and a range of problem
resolution services.

Website: www.acas.org.uk

Telephone: 0300 123 1100 (Monday to Friday: 8am to 8pm; Saturday:9am to
1pm)
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
Access to Work
Access to Work can help disabled people or their employers if their condition or
disability affects the ease by which they can carry out their job or gain employment.
It gives advice and support with extra costs which may arise because of certain
needs.

Website: www.gov.uk/access-to-work/overview
Citizens Advice Bureau
Citizens Advice Bureaux offer free, confidential, impartial and independent advice
from over 3,500 locations. These include high streets, community centres, doctors’
surgeries, courts and prisons. It is available to everyone.
Advice may be given face-to-face or by phone. Most bureaux can arrange home
visits and some also provide email advice. A growing number are piloting the use of
text, online chat and webcams.

Website: http://www.citizensadvice.org.uk/getadvice.ihtml

Telephone (England): 03454 04 05 06

Telephone (Welsh-speaking advisor): 03454 04 05 05
Citizens Advice Scotland

Website: www.cas.org.uk
Law Centres Federation
The Law Centres Federation is the national coordinating organisation for a network
of community-based law centres. Law centres provide free and independent
specialist legal advice and representation to people who live or work in their
catchment areas. The Federation does not itself provide legal advice, but can
provide details of your nearest law centre.

Website: www.lawcentres.org.uk

Telephone: 020 7842 0720

Fax: 020 7842 0721

Email: [email protected]
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
Scottish Association of Law Centres (SALC)
SALC represents law centres across Scotland.

Website: www.scotlawcentres.blogspot.com

Telephone: 0141 561 7266
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Pre-employment Health Questions: Guidance for employers on Section 60 of the Equality Act 2010
Contact us
This publication and related equality and human rights resources are available from
the Commission’s website: www.equalityhumanrights.com
For advice, information or guidance on equality, discrimination or human rights
issues, please contact the Equality Advisory and Support Service, a free and
independent service.
Website
www.equalityadvisoryservice.com
Telephone
0808 800 0082
Textphone
0808 800 0084
Hours
09:00 to 20:00 (Monday to Friday)
10:00 to 14:00 (Saturday)
Post
FREEPOST Equality Advisory Support Service FPN4431
Questions and comments regarding this publication may be addressed to:
[email protected]. The Commission welcomes your
feedback
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publication in an alternative format, please contact:
[email protected]
© 2014 Equality and Human Rights Commission
ISBN: 978-1-84206-618-8
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